Case 211-CV-00620-JES-DNF Document 1 Filed 10/31/11 Page 1 of 6 PagelD 1

FILED
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA CASE NO.: 20H OCT 3 / PM f: 0 7 U.S DiST'rj/rr rm^r MIODLEfbiSTR.CT OF FLORIDA FORT MYERS, FLORIDA

ACE FIRE UNDERWRITERS INSURANCE COMPANY AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 2 . PLAINTIFFS, Vs. CHRISTINE GILL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAIME ISIDRO GALLARDO, DECEASED, and IMMOKALEE PRODUCE SHIPPERS, INC. DEFENDANTS.
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DOUGLAS N. FRAZIER

U.S. MAGISTRATE JUDGE JOHN E. STEELE

UNITED STATES DISTRICT JUDGE

COMPLAINT FOR DECLARATORY JUDGMENT Plaintiffs, foreign corporations, ACE FIRE UNDERWRITERS INSURANCE COMPANY and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, hereby sue CHRISTINE GILL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAIME ISIDRO GALLARDO, DECEASED, and IMMOKALEE PRODUCE SHIPPERS, INC., Defendants, and say: 1. At all times material hereto, the Plaintiff, Ace Fire Underwriters Insurance Company was

incorporated in and was a citizen of the State of Pennsylvania with its Principal Place of Business located at 436 Walnut Street in Philadelphia, Pennsylvania 19106; At all times material hereto, Indemnity Insurance Company of North America was incorporated in and was a citizen of the State of Pennsylvania with its Principal Place of Business located at 436 Walnut Street in Philadelphia, Pennsylvania 19106. 2. At all times material hereto, the Defendants, Christine Gill, as personal representative of the

estate of Jaime Isidro Gallardo, deceased was, based upon information and belief, a citizen of the State of Florida, residing in Broward County, Florida.

Case 2:11-cv-00620-JES-DNF Document 1 Filed 10/31/11 Page 2 of 6 PagelD 2

CASE NO.: Page 2 of 6 3. At all times material hereto, Immokalee Produce Shippers, Inc. was and had been

incorporated in the State of Florida and maintained its principal place of business in Collier County, Florida. 4. This is an action wherein the amount in controversy is in excess of seventy-five thousand

dollars ($75,000.00) Dollars, for Declaratory Judgment, and as such, this Court has jurisdiction pursuant to the provisions of 28 U.S.C. 1441, 28 U.S.C. 2201 and Fla. Stat. 86.011 and 86.021. 5. Venue is proper in the United States District Court for the Middle District of Florida in that

the cause of action accrued in Collier County, Florida and that is where the subject policies of insurance were delivered.

ALLEGATIONS AND REQUEST FOR DECLARATORY RELIEF

6. Ace Fire Underwriters Insurance Company issued a Business Auto policy of insurance to

Immokalee Produce Shippers, Inc. and Richard and Barbara Levine, with a term commencing November 22, 2008 running to November 22, 2009, under policy number CA-154429 CAL-FL08. The liability coverage limits were one million dollars ($1,000,000.00). A copy of the policy is attached to the complaint as Exhibit "A" and is incorporated herein in its entirety as if set forth here in full. 7. Indemnity Insurance Company of North America, issued a Commercial General Liability

policy of insurance, to Immokalee Produce Shippers, Inc. and Richard and Barbara Levine, with a term commencing November 22, 2008 running to November 22, 2009, on Policy Form No. FX157280 XCP FL08. The liability coverage limits were two million dollars ($2,000,000.00). A copy of the policy is attached to the complaint as Exhibit "B" and is incorporated herein in its entirety as if set forth here in full.

Case 2:11-cv-00620-JES-DNF Document 1 Filed 10/31/11 Page 3 of 6 PagelD 3

CASE NO.: Page 3 of 6 8. During the term of the aforesaid policies, an accident and death occurred on April 13,2009 at

sometime between 5:00 p.m. and 5:30 p.m. in or near Immokalee, Collier County, Florida. A field worker and driver-owner of a pickup truck involved in the accident, was identified as Juan Ochoa. 9. Juan Ochoa and Richard Levine, one of the principals of Immokalee Produce Shippers, Inc.,

confirmed that the pickup was not registered as a motor vehicle in Florida, had no license plates and that Juan Ochoa did not have a driver's license at the time of the subject incident. It had been kept (garaged) exclusively at Immokalee for over a year. 10. Jaime Isidro Gallardo, the deceased, was a field worker who had ridden with the loaded truck

from the field to the barn and was riding in the bed of the truck, standing, facing forward behind multiple, stacked crates, on the return trip. Gallardo fell from the truck onto a paved road, striking his head and perishing as a result thereof. 11. 12. The owner and driver of the pickup truck was not insured under any insurance policy. CHRISTINE GILL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAIME

ISIDRO GALLARDO, DECEASED, has filed suit against, IMMOKALEE PRODUCE SHIPPERS, INC., in case No. 10-4878 in the Circuit Court for Collier County Florida. The amended complaint is attached hereto as Exhibit "C" and incorporated here in its entirety as if set forth here in full. The lawsuit alleges that Immokalee Produce Shippers, Inc.'s employee negligently operated the vehicle in which the decedent was riding resulting in the decedent's injury and death. 13. Christine Gill, as Personal Representative of the Estate of Jaime Isidro Gallardo, deceased,

and Immokalee Produce Shippers Inc. assert that Ace Fire Underwriters Insurance Company and Indemnity Insurance Company of North America are bound to defend, indemnify and hold Immokalee Produce Shippers Inc. harmless pursuant to the terms and conditions of their respective insurance policies.

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CASE NO.: Page 4 of 6 14. ACE FIRE UNDERWRITERS INSURANCE COMPANY and INDEMNITY INSURANCE

COMPANY OF NORTH AMERICA have denied coverage under their respective insurance policies for the claims made in the lawsuit filed suit against, IMMOKALEE PRODUCE SHIPPERS, INC., in case No. 10-4878 in the Circuit Court for Collier County Florida, and have declined to defend , IMMOKALEE PRODUCE SHIPPERS, INC. under their respective insurance policies. Copies of the denial letters issued by ACE FIRE UNDERWRITERS INSURANCE COMPANY and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA are attached hereto as composite Exhibit "D" and are incorporated herein by reference as if set forth here in full. 15. ACE FIRE UNDERWRITERS INSURANCE COMPANY and INDEMNITY INSURANCE

COMPANY OF NORTH AMERICA are uncertain and in doubt of their duties and obligations under their respective policies and have a bona fide, actual, and present need for this Court to declare their rights and obligations as they relate to claims for indemnification and defense. 16. This declaratory action is not brought simply to seek the Court's legal advice. Rather, ACE

FIRE UNDERWRITERS INSURANCE COMPANY and PNDEMNITY PNSURANCE COMPANY OF NORTH AMERICA have an urgent and present need for a declaration of rights under their respective policies. WHEREFORE, Plaintiff, ACE FIRE UNDERWRITERS INSURANCE COMPANY and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA respectfully request the Court to: (i) enter an order declaring the rights, duties, obligations, and other contractual relations of ACE FIRE UNDERWRITERS PNSURANCE COMPANY and PNDEMNITY INSURANCE COMPANY OF NORTH AMERICA pursuant to their respective policies; (ii) enter an order declaring that the policies, though valid, binding and enforceable, and in effect, do not obligate ACE FIRE UNDERWRITERS INSURANCE COMPANY or PNDEMNITY PNSURANCE COMPANY OF NORTH AMERICA to defend and indemnify Immokalee Produce Shippers, Inc. with respect to the claims asserted by Christine Gill, as Personal Representative of the Estate of Jaime Isidro Gallardo, deceased; and (iii) enter an order awarding ACE FIRE UNDERWRITERS INSURANCE

Case 2:11-cv-00620-JES-DNF Document 1

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CASE NO.: Page 5 of6 COMPANY and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA reasonable attorney's fees and costs in enforcing their rights in the present action. DEMAND FOR A TRIAL BY JURY Plaintiffs, ACE FIRE UNDERWRITERS INSURANCE COMPANY and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA demand a trial by jury of all issues so triable as a matter of right. CERTIFICATE OF SERVICE HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via First Class Mail to all parties on the attached Service List on October 28, 2011. MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS, LLP The Waterford at Blue Lagoon 1000 N.W. 57th Court Suite 300 Miami, FL 33126 Phone: (305) 774-9966 Fax: (305)774-7743 Email: riavier(2>defensecounsel.corn

E. JAVIER, ESQUIRE lorida Bar No. 0194549

Case 2:11-CV-00620-JES-DNF Document 1

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CASE NO.: Page 6 of 6 SERVICE LIST Counsel for Plaintiff Gill, as PR of the Est, of Jaime Isidro Gallardo Hyram M. Montero, Esq. MONTERO LAW CENTER 100 SE 6th Street Ft. Lauderdale, FL 33301 Ph:(954) 767-6500 Fax:(954) 766-2690 Counsel for Defendants Immokalee Produce Shippers, Inc and Juan Ochoa: Thomas M. Dougherty Geraghty, Dougherty & Edwards, PA. P.O. BOX 1605 Fort Myers, FL. 33902 Ph: (239)334-9500 Fax: (239)334-8930

Case 2:11-cv-00620-JES-DNF Document 1-1 Rain and Hail

Agribusiness Division 9200 Northpartc Drive, Suite 250 Johnston, IA 50131-3007 Tel: (515)559-1200 (800) 585-9624 Fax: (515) 559-1201 Website: www.RainHail.com

Filed 10/31/11 Page 1 of 51 PagelD 7

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